1815421 (Refugee)

[2018] AATA 2780

1815421 (Refugee) [2018] AATA 2780 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815421

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Nathan Goetz

DATE:19 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 19 June 2018 at 4:00pm

CATCHWORDS
Refugee – Protection visa – Vietnam – Review application lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant lodged his protection visa application on 1 March 2018 and the delegate refused the visa on 27 April 2018.The review application was lodged with the Tribunal on 26 May 2018.

2. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 27 April 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 27 April 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 24 May 2018.

5. The Tribunal wrote to the applicant by letter dated 4 June 2018 and dispatched by email advising him that it appeared the Tribunal had no jurisdiction to hear the review application because he had not filed his review within the prescribe timeframe. The Tribunal invited the applicant to comment on or respond to this issue by 18 June 2018.

6. On 12 June 2018, the Tribunal received a response from the applicant. He wrote that he was only two days out of time and that the delay was not caused by him but was due to sickness. He stated that he had arthralgia pain and was unable to walk which was why he forgot to lodge the review application. He attached a medical certificate dated 6 June 2018.  The medical certificate did not disclose anything other than the applicant stated to the doctor that he had arthralgia from 20 May 2018.

7. The Tribunal has considered the applicant’s response to the jurisdiction issue. Assuming that the applicant did had arthralgia from 20 May 2018 which prevented him from lodging his review application it does not explain why the applicant did not lodge his review application between the notification of the delegate decision on 27 April 2018 and prior to his incapacitation from arthralgia pain on 20 May 2018. In any event, there is no power for the Tribunal to extend the time for lodging of a review application. The applicant was required to lodge his review within the prescribed timeframes after being notified of the decision. The applicant does not claim that he was not notified of the original delegate decision but instead claims that he forgot to lodge his review due to a medical condition.

8. As the application for review was not received by the Tribunal until 26 May 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

9. The Tribunal does not have jurisdiction in this matter.

   Nathan Goetz

   
   

   Member